Standing Committee B

[Mr. Bill O'Brien in the Chair]

Proceeds of Crime Bill

David Wilshire: On a point of order, Mr. O'Brien. This morning, we had difficulties with Tuesday's Hansard. It has now appeared, but it seems to report a sitting for a day on which we did not sit. I think that we can assume that the front cover means Tuesday, not Monday.

Bill O'Brien: I understand that that has been explained. We will interpret Monday as Tuesday.Clause 248 Proceedings for recovery orders in England and Wales or Northern Ireland

Clause 248 - Proceedings for recovery orders in England and Wales or Northern Ireland

Amendment proposed [this day]: No. 382, in page 146, line 7, at end insert— 
 '(1A) All proceedings for a recovery order in the High Court shall take place in chambers.'.—[Mr. Grieve.]
 Question again proposed, That the amendment be made.

Bill O'Brien: I remind the Committee that with this we are taking amendment No. 383, in page 146, line 21, at end insert—
 '(1A) All proceedings for a recovery order in the Court of Session shall take place in chambers.'.

Alistair Carmichael: Committee members will be relieved to hear that when the Committee rose at 11.25 this morning, I had formed a characteristically eloquent and well structured submission on the amendment. Unfortunately, I did not take the precaution of making any notes, so my contribution will of necessity be shorter than it might otherwise have been.

Anne McGuire: It must have been a good lunch.

Alistair Carmichael: I do not need a good lunch to forget.
 In general terms, I support the amendment, which raises an important point and requires full discussion. It would provide important protection for innocent third parties who may well have substantial business interests brought into question. Mud thrown is mud that sticks. 
 In an earlier sitting, the Minister of State referred to the difficulties that the hon. Member for Paisley, North (Mrs. Adams) had with drug dealers in her constituency. It was suggested that a security company of doubtful propriety was involved. It is conceivable that many people in her constituency interacted for some time, in good faith, with such ostensibly 
 respectable companies. They might be brought before the court under proceedings for recovery orders. There must be some protection for people in such circumstances. 
 The hon. Member for Beaconsfield (Mr. Grieve) made a good point about the personal safety of those who are party to criminal actions. Holding proceedings in chambers would afford third parties a degree of security, so the amendment could be said to strengthen the Bill. I endorse his remarks about the publication of the decision. I see no difficulty with that—publication seems eminently sensible. The amendment offers important protection to innocent third parties, and I urge the Minister to give it serious and careful consideration.

Bob Ainsworth: The amendment would require that civil recovery proceedings in England, Wales and Northern Ireland take place in chambers. Amendment No. 383 would impose a similar requirement on civil recovery proceedings in Scotland.
 Amendment No. 382 would mean that civil recovery proceedings must take place in private rather than in open court—we discussed ''must'' and ''may'' before we adjourned for lunch. We do not accept that such a requirement is necessary or appropriate. The existing rules are sufficient to determine when civil recovery proceedings should be held in private. Under the civil procedure rules, the general rule is that court hearings are held in public. Open justice must be the presumption. That has been our law for a long time and it is now confirmed by our incorporation of the European convention on human rights. There can, of course, be exceptions. Under the rules, any party would be able to apply to the High Court for civil recovery proceedings to be conducted in private. It would be a matter for the court to judge whether that was appropriate in a particular instance. 
 Although I understand the worries that have been expressed, the argument is that a public hearing is more important because it acts as a safeguard, as it does in criminal cases. The hon. Member for Beaconsfield asked whether we were willing to change ''must'' or ''shall'' to ''may'', but ''may'' is catered for within civil procedures. He suggested that the predisposition should be towards proceedings being taken in private, with an ability to go public. That is not the case. It is the other way round. I accept that that is fundamentally different from his suggestion on how civil proceedings operate. There is a case to be argued for the proceedings to be taken in private.

Nick Hawkins: The Minister is approaching such a serious matter in a helpful way. Can he direct me to the facility under which matters can be taken in private? Is he talking about the general civil law or something specific under the Bill?

Bob Ainsworth: The whole of part 5 is based on civil procedure rules.

Nick Hawkins: Is the Minister talking about general civil procedure?

Bob Ainsworth: Absolutely. There is no difference between what is proposed under the Bill and that which applies to other civil proceedings. I am not suggesting that there is.

Nick Hawkins: Even if the Minister is not persuaded by our argument, as I hope he may yet be, will he accept that the presumption should be towards private and that the exception should relate to public? I still stick to that proposal. That would be preferable for all the reasons that have been outlined. It would be helpful to receive clarification under the Bill, given that it explores at length much of the procedure to take account of the revisions that the Government are introducing. Would it not be better to have a reference in the clause to hearings in chambers?

Bob Ainsworth: We are only recently into part 5. While the hon. Gentleman is absolutely right about parts 2, 3 and 4, he may find a shift of emphasis in part 5 in that there are not generally specific provisions and that it follows the normal procedures. I am told that part 39 of the civil procedure rules covers such issues. He is asking that we make specific provision outside and away from the usual civil procedures. If he is adamant that that remains his view, perhaps we may differ or perhaps we will not.
 Serious allegations are made against people in the course of normal civil proceedings. There is no automatic right to privacy. A libel action involving allegations of defamation will nearly always be held in open court. That could potentially be as damaging as, or even more damaging than, anything that might arise in the course of civil recovery proceedings. A civil fraud claim will involve allegations of fraud, but will still normally be held in open court. 
 As I said, civil recovery does not amount to an accusation that a particular person took part in a particular criminal act. There is no necessary implication that the respondent or a third party in a civil recovery case is guilty of unlawful conduct that generated the original recoverable property. If the case is based on a person having acquired property that is recoverable because of another person's unlawful conduct that will be made explicit in the proceedings, as it will form part of the director's case. Of course, the amendment presupposes that every respondent and third party in a civil recovery case will want anonymity. The hon. Member for Beaconsfield addressed that issue fully in his remarks, and I agree with him that that would not always be the case.

Dominic Grieve: I was struck by the Minister's comment a moment ago about the statement on the application that the recovery procedure is against a party who, it has been accepted, has acquired assets innocently. In those circumstances, does he consider that the proceedings should be in chambers if the individual so wishes?

Bob Ainsworth: No, I would not accept that we should tell the court that proceedings must be in chambers when that condition applies. If the individual concerned wants the proceedings to be in chambers, his representative can make that case and
 seek to persuade the court. The court has total discretion and freedom to have private hearings under the civil procedure rules as I understand them. The hon. Gentleman appears to be asking us to say that when the property is being recovered from an innocent third party, the proceedings must be in private. However, the original application will make it absolutely clear that that allegation is being made, and that there is no allegation that the person committed the criminal act, but that they have acquired criminal property.

Dominic Grieve: I accept that, but if the decision, against the wishes of the person against whom such an application is being brought, is that the proceedings should take place in public, and the person feels that his business interests will be severely damaged by disclosures and other matters that will have to be aired, the state—which is not another litigant but has responsibilities towards all, including those against whom it is litigating—would see fit to introduce a rule to protect their privacy.

Bob Ainsworth: The hon. Gentleman is absolutely right, but the rule has already been provided by the state under civil procedure rules. Those rules allow for the court to take that decision having heard representations about the case. The hon. Gentleman is now saying that we should deny the court that discretion, and tell it, in those circumstances, that it must sit in chambers, rather than allowing the same rules to apply that apply in other civil proceedings in which it has the discretion to decide.

Nick Hawkins: Let me try to explain to the Minister why my hon. Friends and I feel that a different rule is necessary. Although the Minister has said that parts 2, 3 and 4 may be different, the Assets Recovery Agency is a new creature. The state should strain every sinew to protect those who may turn out to be completely innocent when such a new creature is being created. That is why it would be better for the Bill to provide that such matters should normally be dealt with in private, and that only in exceptional circumstances should they become public. That is why there is a strong case for a different rule to apply from those under standard civil procedures.

Bob Ainsworth: I am afraid that I do not agree. As I said, normal civil proceedings have the potential to do serious damage to people's or businesses' reputations. Despite the potential for that damage, until now, Parliament has decided that, in general, court decisions should be taken in open court, and that justice should be seen to be done as well as being done. The hon. Gentleman is asking for an exception and a predisposition—at least, when certain issues are exposed—that would allow for private hearings. Such matters are best left to the court; it is perfectly capable of listening to representations and making decisions. We ought not to seek to limit the court's discretion, or to depart from the normal civil procedure rules. The amendment should be withdrawn.

Dominic Grieve: I am sorry that the Minister takes that approach. I was prepared to be flexible, although a serious issue is at stake.
 In last Tuesday's debate, the hon. Member for Redcar (Vera Baird) highlighted the potentially damaging impact that such a process could have on people. Other hon. Members have made similar points—and some of them are also Government Members. 
 I accept that the presumption in favour of public hearings is an important principle. I listened carefully to the Minister's arguments, and he has come close to persuading me—for instance, in serious cases in which individuals are accused of personally possessing the proceeds of their own unlawful conduct, I agree that important public policy issues must be taken into account, and that justice should be seen to be done, and that the seriousness of the allegation should be considered. As he knows, I have anxieties about the test that will be applied, and the nature of the proceedings, but I can see the argument for conducting such proceedings in public—unless the court decides that there are compelling reasons not to do so. 
 However, as the Minister has stated, unusual cases will arise in which proceedings are brought against a person who, it is acknowledged at the outset, is either a bona fide purchaser or the innocent recipient of money. In such circumstances, it would be extraordinary if even the court were left with the discretion to decide whether the proceedings should be public or private. I can see no public policy reasons whatever why that should not be a private process, unless the person being subjected to it wishes otherwise.

Vera Baird: I understand the cause for concern. I wish to recruit an argument that I made yesterday. An accountant might be a named party in such proceedings, and he might be found to have behaved wholly properly. However, during the proceedings, the publicity that attaches to him could be very damaging to the confidence that his other clients might have in him as an honest accountant.
 I also advocated that there should be a code of practice for the director of the Assets Recovery Agency, which I likened to the code of conduct for Crown prosecutors. That code might include a duty for the director, in advance of bringing proceedings that involve an innocent third party, to consider whether he might wish to make an application to the court for the proceedings to be held in private, because, although my hon. Friend the Minister is absolutely right that the court has that discretion, it would be much more likely to exercise it if the application were to come from both sides. Furthermore, the director might be glad to have the duty to consider that. I pray it in aid again as a suggestion that there should be a guide.

Dominic Grieve: I am very grateful to the hon. Lady. At lunchtime, when I reread the remarks that she made on Tuesday, they immediately brought to mind her
 comment about the code of conduct. That was an unfortunate consequence of not having a chance to reread Hansard before this morning's proceedings, because I would have raised that issue when closing my submissions on the amendment that we were only halfway through discussing. She made an important point. It slipped my mind when I made my closing remarks about the balance of probabilities.
 If such a code were offered and details were provided, it would be good grounds for no longer having such an anxiety. I agree entirely with the hon. Lady about the code if it provided that the director must pay due regard to the need for privacy in cases when an individual's interests may be damaged and, included within that, the nature of the director's case against that individual in seeking to recover the particular assets. When such a code was set up, one could easily have a joint application to the court when the director said, ''We fully accept that, although we are seeking to recover money from this particular individual, this is not a case in which he has personally committed unlawful conduct. Although we believe that the assets should still be recovered, we would support his application that the matter be dealt with in chambers, because he falls within the category of an innocent recipient.'' That would go a long way towards solving the problem. I shall give the Minister an opportunity to say that he is minded to go along with our proposal.

Bob Ainsworth: I am enormously aware of the fact that the hon. Gentleman, as well as my hon. Friend the Member for Redcar, has experience of matters that I do not have, but surely he accepts that there is a code. It is the civil procedure rules. It is our desire that those rules should apply absolutely to the director. They will govern him and everyone else. The hon. Gentleman is suggesting that there should be a separate code, other than the civil procedure rules, that applies specifically to such cases and to no other civil recovery cases. I am stretching for the justification for such an argument.

Dominic Grieve: The justification starts with the premise that the proceedings are, by their very nature, unusual. What generally goes on in civil courts is the litigation of individual rights between individuals—claims by one individual or corporation against another. Here, we are talking about a state-sponsored mechanism for recovering assets from an individual. Furthermore, as the Minister has accepted, we are discussing the recovery of assets that need not otherwise be impugned either by the taint of criminality—because no criminal charge has been brought—or by a claim of any other individual. There may be cases when the money has also been claimed by another individual as the assets of crime, but that is not necessarily the case.
 In those circumstances, surely we are much closer to the processes that take place before the special commissioners of income tax than to ordinary court procedure. I have serious doubts about importing ordinary civil rules to that procedure under the Bill, because it does not bear much resemblance to the 
 rules. I am not sure that the discretion under part 39 of the civil procedure rules is helpful, although the courts might starting making use of it. 
 I do not know about the experience of other members of the Committee who have practised in legal matters, but I have never taken a civil case in which the court sat in chambers unless it was specified in the rules that that was the ordinary practice, as it is in family law work, for example. I have heard of cases in which the court has gone in camera to hear evidence that is particularly difficult or sensitive. I can apply only my own experience, and I have not encountered that, although other hon. Members who are solicitors or barristers with practising certificates may have knowledge that I do not. 
 I am concerned that, unless the habit develops over time, courts will follow their usual practices and matters will be heard in open court. As the procedure is between the state and a person, the state, through the director of the Assets Recovery Agency, has particular responsibility to act in a totally fair manner and to have regard to the impact that proceedings will have on innocent people. That is different from the adversarial system, which sets one civil litigant against another. 
 Parliament and the Government could lay down a sensible rule. That rule might not have to be as broad as the one that I suggest, but I urge the Minister to go away and speak to his advisers. He should think about the matter and consider whether he is prepared to return with a concession that could mete out the justice needed in such cases. So far, he has not given an inch, and in light of that I intend to press the amendment to a Division. I will also come back on Report with a slightly different proposal that may commend itself to him more than the broad amendment currently proposed. I regret that, in the absence of any concessions or indications that the Minister will do anything about the matter, I want to press the amendment to a Division. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 13.

Question accordingly negatived. 
 Mr. Grieve: I beg to move amendment No. 355, in page 146, line 17, at end add—
 '(5)The claim form must give details of the criminal offence or unlawful conduct relied upon in accordance with a code issued by the Secretary of State prior to implementation.'.

Bill O'Brien: With this it will be convenient to take amendment No. 353, in page 146, line 26, at end insert—
 '(2A)The application must contain details of the criminal offence or unlawful conduct relied upon in accordance with any code that may be made by act of sederunt.'.

Dominic Grieve: The clause—apart from clause 249, which deals with Scottish procedure—is the only clause that amplifies the civil procedure rules. We must deal with the question of what information the enforcement authority must supply in a claim form. It is interesting that those who drafted the Bill felt that the matter was one to which they should attend. If the Minister was so confident that the procedure was compatible with civil rules, the matter would not need to be spelled out. Let us examine the Bill. It states:
 ''If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the claim form it must be described in the form in general terms; and the form must state whether it is alleged to be recoverable property or associated property. 
 (4) The references above to the claim form include the particulars of claim, where they are served subsequently.'' 
 I tell the Minister, who has been so ready to tell us that the ordinary compliance with the civil procedure rules will be sufficient for these purposes, that I smell a little rat. Subsections (3) and (4) appear to reduce what one would expect in a modern claim form, especially post-Woolf. I would expect modern claim forms to be fairly detailed documents. I have a slight suspicion that subsections (3) and (4) suggest that the form's scope can be limited, because it states that the property should be described in only general terms. 
 I am mindful that the Minister will say, reasonably, that at the start of proceedings it may be difficult to identify all the property with which we are concerned in detail. Therefore, part of our discussion, before we move to the amendment, is to ask him to elucidate how he sees the clause working in practice. I am worried that the amount of information that must be supplied at the start of a claim may be less than what one might normally expect. I want to ensure that respondents know as much as possible about what is alleged against them. 
 The amendments would take the matter a little further and provide that the claim form must give details of the criminal offence or unlawful conduct that was relied on in accordance with a code issued by Secretary of State. I have made a nice concession to allow the Secretary of State to come up with a code that meets the director's requirements. I know from the previous discussion that there may be circumstances in which a criminal offence has not been alleged against the person against whom the proceedings are brought, but a criminal offence would be alleged against the person from whom he obtained the property. That should be clearly spelled out in the claim. If that does not happen at that time, it begs the question, at what stage in proceedings will the 
 particulars be provided? The proceedings are draconian and novel and it is incumbent on the director to spell out the allegations as early as possible. 
 There are two issues for the Minister to consider. What do subsections (3) and (4) do in practice, and to what extent are they present to mitigate the requirements of the civil procedure rules? The Minister may tell me that the subsections would amplify the rules, but I am not convinced. How would the amendment, which I commend to the Committee, help to ensure that the respondent, at the time of the claim, is fully aware of the nature of the case that the director will make?

Mark Field: I must confess that, unlike my hon. Friend, I am not a great civil litigation expert. That was the case before and since the Woolf reforms. However, there are two minor points on which I seek the Minister's guidance. I appreciate, on one hand, the sensitivity about going into great detail about the particulars of a claim, given the nature of confiscation orders and the controversial nature of individuals who are before the courts, especially the Mr. Bigs who have large-scale illicit business empires. However, I share the concern expressed about the broad-brush approach to particulars of claims, and I suspect that a formulation will be used on every form that will subvert the changes brought about under the Woolf reforms. I am also concerned that using a standard form of words will enable fishing expeditions to take place, and justice will not be done in that regard.
 I appreciate that my hon. Friend wishes to hear whether the Minister has any further comments, after which we may wish to elaborate on the matter.

Alistair Carmichael: I have broad sympathy for the end that the hon. Member for Beaconsfield wants to achieve in relation to amendment No. 355. With regard to the provision envisaged under amendment No. 353—the parallel Scottish provision—I presume that it is intended that it should mirror the position south of the border. I have reservations about whether it is an appropriate way of achieving that. Having said that, I do not know what would be an appropriate way of doing it.

Dominic Grieve: In formulating the provision, I was having a stab in the dark. I have no pretence at expertise on Scottish law. It was suggested to me that that might be the appropriate way of doing it, and it was the best that I could do.

Alistair Carmichael: I have every sympathy with the hon. Gentleman. It strikes at one of the difficulties with regard to the Scottish provisions, which I previously identified, inasmuch as the power vested in the Assets Recovery Agency south of the border is vested in the Lord Advocate north of the border. If the Secretary of State or equivalent is to produce a code, the Lord Advocate would produce a code in Scotland, in which case he would be producing a code for himself. He would therefore be trying to direct himself, which is a nonsense. My reservation about using an act of sederunt is that I recollect that that is promulgated by
 the Lord President of the Court of Session. Having gone beyond what is effectively a normal procedural point, it is not appropriate for the Lord President to issue instructions to a Minister of the Crown.

Dominic Grieve: I understand the hon. Gentleman's point. One of the things that worried me about the Scottish amendment as I drafted it was that it is not mandatory. It almost invites the Scottish judiciary and the Lord President to do something. That was why I hesitated about trespassing on areas of Scots law about which I have no knowledge. Perhaps the hon. Gentleman, or any other Committee member who is qualified in Scots law can come up with a better suggestion, as the principle at which I am aiming is clear.

Alistair Carmichael: It is a principle with which I have broad sympathy. I cannot see a better way of achieving the aim of the amendment, and it may be a necessary compromise in those circumstances. That is a difficulty with the legislation in its current form, on which I have made my views known to Ministers and hon. Members on both sides of the House privately, without necessarily putting them on the record. This may be a good opportunity to place them on the record. I fear that the continued exercise of such functions by the Lord Advocate will cause problems, and the biggest problem will be instruction and accountability. However, we have been unable to persuade the civil servants of that, so I shall not be tilting at windmills today.

Bob Ainsworth: There could be any number of reasons why the hon. Member for Beaconsfield anticipates the arguments that I shall throw back at him. Perhaps he is simply good at guessing, or perhaps we have spent so much time together that he can now read my mind. Far and away the most likely is that he is good at taking a brief and is at least as capable of arguing against his amendments as he is of arguing in favour of them. I suspect that, despite his protestations about its being an extremely unusual procedure, he knows that that is true and is advancing an argument for the sake of it. He would be just as capable of arguing the other way.
 Amendment No. 355 would require the claim form to give details of the criminal offence or unlawful conduct on the basis of which the property listed or described on the form is alleged to be recoverable. The details would have to be given in accordance with a code issued by the Secretary of State. Amendment No. 353 would make the same provision for Scotland. 
 Civil recovery procedures, like normal civil proceedings, will begin when the court issues a claim form at the request of the claimant. Requirements on the content of the claim form are specified in the civil procedure rules. For example, the form must contain a concise statement of the nature of the claim, including a concise statement of the facts to be relied on. It must also specify the remedy that the claimant requests. 
 The claim form will also include particulars of the claim, although they may be served separately. Under the civil procedure rules, they must include a concise 
 statement of the facts on which the claimant relies. In practice, that is likely to include details of the unlawful conduct that is alleged to have generated the recoverable property. It should not, therefore, be necessary for the Bill to require the claim form to give details of the unlawful conduct. The enforcement authority will in any event have to disclose the details of its case, including documents and witness statements, before the start of the trial, which will give the respondent adequate opportunity to mount a defence. 
 The amendment would require the Secretary of State to issue a code in respect of the details to be given. It is unclear what advantage that would have over the requirements already specified in the civil procedure rules; nor is it clear what exactly would feature in the code. 
 The amendment implies a link between a specific criminal offence and the property involved. Although it may be possible to demonstrate such a link, clause 247(2)(b) makes it clear that property obtained through unlawful conduct need not be linked to a specific offence. It is not necessary to show that property was obtained through a particular sort of unlawful conduct as long as it can be shown to have been obtained through some sort of unlawful conduct. 
 The wording of clause 247(2)(b) is intentional. A requirement to show a link with a specific offence would reduce the effectiveness of civil recovery. Indeed, the difficulty of showing such a link might have been a reason why criminal prosecution was not possible in the first instance.

Dominic Grieve: I confess that the Minister now worries me slightly. We are discussing a claim in which the burden relating to the balance of probabilities is on the director to establish to the court's satisfaction that, on the balance of probabilities, a particular item constitutes proceeds of unlawful conduct, either on the part of the individual involved, or on the part of another person, and that the individual involved has acquired them in some form. From that, I would have assumed that it was central to the case that the director should at least be able to establish what is the unlawful conduct that he alleges is the centrepiece of the case.

Bob Ainsworth: That is not necessarily the case. We have discussed widely how criminal proceeds may become dissipated, how they may change and change again. We have discussed how, in the course of his investigations, the director will have to pursue those changes to the end. No doubt, he will know that it is not simply a case of a tree growing from a single point—a particular criminal offence—but that there two ends to those roots. Criminal proceeds may become intermixed in such a way that they cannot possibly be unravelled. They may also be hidden in some complicated process, often by design, to prevent their discovery.
 Nothing that I have said—and nothing in the clause—detracts from the necessity for the director to show, on the balance of probabilities, that those proceeds are the proceeds of crime. Nothing can take that away. The hon. Gentleman need not fear that. We have discussed the type of situation in which a gang may have carried out a gold bullion raid, when the bullion subsequently becomes cash, then property, and then cash again. The same gang, or associated gangs, may have pulled off a bank robbery, too. To insert a requirement that makes it necessary to prove that the proceeds came from the gold bullion raid and not the bank robbery would be ridiculous beyond belief.

Dominic Grieve: This is an interesting and an important discussion. I accept that, in civil recovery proceedings of the proceeds unlawful conduct, it may be possible to invite the court to draw an inference—from the totality of the evidence—that the only explanation for the origin of assets is unlawful conduct. However, I should also expect that, if the director believes that there are specific assertions to be made in respect of property, he will make those assertions. It worries me that what the Minister has just said sounded very much like the assumptions under the confiscatory procedure, which plainly it is not.

Bob Ainsworth: No, it is not. It is civil recovery of the proceeds of crime, requiring the director to show, on the balance of probabilities, that the property concerned is the proceeds of crime. It would make life unnecessarily difficult if the director had, in every single case, to show that the proceeds were those of a particular crime. I do not think that the hon. Gentleman believes that to be a necessity, nor that he wishes us to go down that road. I am not saying anything that detracts from the level of proof required by the director to prove his case. I do not accept his point and I certainly do not accept that the director must, in all circumstances, prove the individual criminality that led to the proceeds being generated.
 Amendment No. 353 to clause 249 would take the same action in respect of Scotland. The hon. Gentleman asked me specifically to confirm or otherwise why subsections (3) and (4) were drafted and whether they attempt to limit the requirements under the civil procedure rules. The civil procedure rules will apply in full to the claim form procedure. Subsection (3) is intended to clarify one particular aspect of what must go into the claim form under civil procedures. He is absolutely right. We are seeking to amplify, not restrict, what is required under the civil procedure rules. For those reasons, I ask him not to press that amendment.

Dominic Grieve: Again, I am slightly disappointed with the Minister's response. The amendment does not seem incompatible with what he says should be possible within the framework of such litigation. The amendment says:
 ''The claim form must give details of the criminal offence''.
Obviously, if someone knows of a particular criminal offence, one would like to hear about it and learn, for example, that these are the proceeds of the robbery that took place at X bank on Y date.

Bob Ainsworth: It is my understanding that it is not so much the case that we would like to hear about the offence but that there would be a requirement to disclose such information.

Dominic Grieve: There is also the concept of unlawful conduct. It would be worrying if the Minister could launch litigation to recover the proceeds of unlawful conduct without being able to identify—even in general terms—what unlawful conduct the person is alleged to have committed or is connected with by innocently receiving money. That would suggest that proceedings could be launched as fishing expeditions, and that was not the Government's intention in introducing the Bill. If that is the intention, the sooner it is knocked on the head the better. The Minister has not satisfied me about the clause.

Vera Baird: Is it not plain that the court will not be able to carry out its duty under section 246(3) to
''decide on a balance of probabilities whether it is proved— 
 (a) that any matters alleged to constitute unlawful conduct have occurred'' 
unless those matters are specified on the claim form? How can a judge make a finding of that kind if he does not know what the unlawful conduct is? 
 It has been repeatedly said that the white book, with which the hon. Gentleman is well acquainted, will be part and parcel of the procedure. Any aggrieved respondent will be able to apply for further and better particulars and interrogatories in the normal way. Refinements from proceedings are a great feature of the civil procedure rules. The hon. Gentleman has nothing to worry about.

Dominic Grieve: The hon. Lady makes a good point. I was about to say that if the information could not be provided, the case would have no prospect of getting off the ground. I shall reverse the argument—I am prone to doing that, but it is worth doing. If the information must be provided, why should that not be spelled out in the Bill? I am more than 90 per cent. confident that she is correct. If information about the criminal offence cannot be supplied, the action has no chance of success, but why not spell out that it should be supplied?
 The amendment was promoted by the Law Society, which expressed anxieties about the issue. It considered the matter and thought that the issue should be further refined. Fortified though I am by the hon. Lady's comments, I do not understand why the provision should not be in the Bill. It should be included because of the unusual powers that may be exercised. I see that the Minister is being handed a note, so I shall give him the opportunity to intervene if he wishes to do so.

Nick Hawkins: While my hon. Friend is pausing for the Minister to read the note, perhaps he will accept an intervention from me.
 My hon. Friend is right to say that the Law Society shares our concerns. I draw the attention of the hon. Lady and the Minister to the fact that the Law Society expressed its concerns in the following way: 
 ''Vague assertions should not be sufficient to allow the appointment of interim receivers and/or recovery proceedings or orders to be made''. 
If criminal conduct is alleged, as much detail as possible should be supplied about it. I accept what she says about the white book, with which I, too, am reasonably familiar, or was some years ago. If the Law Society of England and Wales shares our concerns, that should be put in the Bill.

Bill O'Brien: Order. That was too long an intervention.

Dominic Grieve: I am grateful to my hon. Friend for those remarks. However, I will not respond to them, as the Minister wishes to say something.

Bob Ainsworth: I have very little to say, I am afraid. I have received some information. With regard to our earlier discussion, there is no need to spell out that it should be supplied, because of the civil procedure rules. I doubt that the hon. Gentleman finds that exciting, and it is a great shame that he is, repeatedly, so disappointed in me.

Dominic Grieve: Although I am grateful to the Minister, Timeo Danaos et dona ferentes. I wish to press the amendment to a Division.
 Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 10.

Question accordingly negatived.

David Wilshire: On a point of order, Mr. O'Brien. For the benefit of the ignoramuses—such as me—who are present, can it be arranged for Hansard to include a translation of the Latin phrase that was quoted?

Nick Hawkins: Further to that point of order, Mr. O'Brien. I am sure that the staff of Hansard are familiar with the expression, ''Beware Greeks bearing gifts.''

Bill O'Brien: That is not a point of order for the Chair.
 Clause 248 ordered to stand part of the Bill. 
 Clause 249 ordered to stand part of the Bill.

Clause 250 - ''Associated property''

Nick Hawkins: I beg to move amendment No. 354, in page 147, line 1, leave out paragraph (e).
 This is a probing amendment. The explanatory notes offer the example that where a painting is recoverable property, but legitimate money has been used to pay for it to be framed, the frame would be associated property. I shall refrain from exploiting the opportunity to play on the double meaning of the word ''framed'' in this context. 
 With regard to associated property, there should be a debate about scope and precision. The scope appears to be very wide, if one takes into account the entire clause. The weakness seemed to be in subsection (1)(e) and that is why we tabled our probing amendment to delete it. Its drafting is imprecise. 
 This morning, the hon. Member for Orkney and Shetland (Mr. Carmichael) referred to drafting worthy of Sir Humphrey in ''Yes, Minister''. This may be a further example. When new procedures are introduced to deal with the proceeds of crime—we all want the Bill to hit effectively the Mr. Bigs—we want to ensure that there are no vague phrases. The Law Society briefed us on the previous amendment about vague assertions. Again, we are unhappy about the vagueness of clause 250. 
 We want to hear details from the Under-Secretary. Will he be prepared to accept the point as a layman rather than a lawyer? He often makes a virtue of that status. [Interruption.] I beg the Under-Secretary's pardon: apparently, the Minister of State will respond. Both Ministers have made a virtue of the fact that they examine the facts as practical lay Ministers rather than lawyer Ministers. In this case, surely even the layman is puzzled by the vagueness of the wording. That underlines our worry, and other hon. Members may share our worry.

George Foulkes: I am dealing with the clause, although not because the hon. Member for Beaconsfield stridently and atypically told my hon. Friend the Under-Secretary to ''go away'' to think about matters, and later said that he smelled a rat. My hon. Friend is not slinking away. The arrangement was made in advance to allow him a well-earned rest after a full morning sitting and half an afternoon stint.
 Associated property requires explanation and I shall take up the invitation of the hon. Member for Surrey Heath (Mr. Hawkins) and say more about it. My comments may be of a clause stand part nature, which may be more sensible.
 Associated property is property that is the subject of civil recovery proceedings but that is not in itself recoverable. Clause 250 defines associated property. The enforcement authority will have the discretion to bring proceedings in respect of associated property in addition to recoverable property. There may be civil recovery cases in which only part of a property may be 
 recoverable because only part may have been obtained through unlawful conduct. Alternatively, there may be several interests in the property, only some of which were obtained through unlawful conduct. The non-recoverable part of the property or the non-recoverable interest in the property is described as associated property. 
 We would not expect proceedings to be brought in respect of non-recoverable property unless the enforcement authority considered it necessary to do so after taking all circumstances into account, including satisfying any right that it has to recover the recoverable property. For example, that may be proportionate when a non-recoverable interest in property cannot be separated from a recoverable interest. That should not prevent civil recovery action. The provision on associated property will allow proceedings to take place in respect of the whole property, including any part that is not recoverable. 
 If the court allows the enforcement authority to recover associated property, it will almost certainly recompense the associated property owner for the loss by, for example, ordering the payment of compensation. There are provisions relating to what would happen to associated property subject to a recovery order in clauses 270 and 272. Associated property may be held by a third party or by the respondent, for example, when the respondent mixes recoverable property with his legitimate property. The clause defines associated property as property that falls within one of five descriptions, which is not in itself recoverable property. 
 The first category is any interest in the recoverable property—for instance, a tenancy in a recoverable freehold. That tenancy is not recoverable by the enforcement authority but is associated with the recoverable property. Proceedings may therefore be brought in respect of the freehold and the tenancy, and the tenant will, of course, be a party to the proceedings. I am sure that the hon. Member for Surrey Heath, as a qualified lawyer, will understand that. 
 The second category is any other interest in the property in which the recoverable property subsists. When a lease in a freehold block of flats has been purchased with recoverable property, the other leases in the same block, bought with legitimate money, would be associated property. If the enforcement authority brought proceedings in respect of the recoverable lease, it would have a discretion to bring proceedings in respect of the other leases, too. Whether to exercise that discretion would be a matter for the authority. Any decision to bring proceedings in such circumstances would have to be proportionate, in order to comply with the European convention on human rights. Hon. Members may wonder why I look at Liberal Democrat Members when I say that—

Alistair Carmichael: We are very keen on the European convention on human rights.

George Foulkes: Yes.

Alistair Carmichael: And on proportionality.

George Foulkes: We are not so keen on proportionality in all matters.
 The next two categories would apply to cases when property is held in common—for example, when two people buy a car together. My hon. Friend the Member for Wrexham (Ian Lucas) will no doubt be thinking of such matters. One buys the car with recoverable cash, and one with legitimate cash. The second one would be my hon. Friend, if he were involved. The share of the person who paid with legitimate cash would be associated property. That is different from the situation in which two people hold property jointly. Property held jointly, when one party contributed recoverable funds, and the other did not, is dealt with at the recovery order stage. That is because, in law, when property is held jointly there is only one interest in the property. By contrast, when property is held in common, the law recognises two interests in the property. 
 The final category would apply when recoverable property is part of a larger property but not separate from it. That will interest the hon. Member for Surrey Heath. For example, if a painting was recoverable property but the frame—the square thing round the painting—had been purchased with legitimate money, the frame would be associated property. When the recoverable property consists of rights under a pension scheme, however, the clause makes it clear that no property is to be treated as associated property. That has the effect that civil recovery proceedings cannot be brought in respect of the non-recoverable interest in a pension fund—the interest of all those other than the respondent who have an interest in the pension fund. Particular arrangements exist for recovering the proceeds of unlawful conduct that have been paid into pension schemes, while protecting innocent parties in the scheme at the same time. Those arrangements are set out in clauses 273 to 275.

Dominic Grieve: The Minister is providing an extremely lengthy and helpful explanation. While doing so, will he also explain why pension schemes are being treated in that way?

George Foulkes: I will indeed—

Nick Hawkins: The Minister is waiting for a note.

George Foulkes: May I first deal with the amendment, as I have just dealt with the definition of associated property? The amendment would change the definition of associated property, omitting the category in which recoverable property is part of a larger property but not separate from it. Clause 310 makes it clear that the term ''part'' used in relation to property includes a portion.

David Wilshire: Yes, Minister.

George Foulkes: Associated property is property that is not in itself recoverable. Well, I said that earlier when I mentioned the example of the frame of a painting. It would also cover circumstances in which a person buys property—for example, a necklace—with a mix of recoverable and non-recoverable cash. The recoverable property would then be a part of the larger
 property, but clearly not a separate part. Subsection (1)(e) ensures that the non-recoverable portion is associated property.
 It may be helpful if I explain further the thinking behind the concept of associated property.

David Wilshire: My mother has not been mentioned for several weeks. I am struggling to work out what I can do with three strands of pearls. Will two of the strands be the recoverable bits? Will I be able to keep the third?

George Foulkes: Funnily enough, I was thinking about that when the hon. Gentleman referred to the necklace. Necklaces can be divisible. I am glad that his mother has returned—if not in person, at least in spirit. My hon. Friend the Member for Glasgow, Pollok (Mr. Davidson) has also returned in spirit. He has asked me to give his apologies for his absence this week. He is in Nairobi. Earlier this afternoon—or was it this morning?—I felt like sending him a postcard saying, ''Come back—all is forgiven'', because we were missing him.
 There may be civil recovery cases in which only part of a property may be recoverable, because only part of it may have been obtained through unlawful conduct, or there may be several interests in a property, only some of which have been obtained through unlawful conduct. The non-recoverable part of the property or the non-recoverable interest in the property is described as associated property. We would not expect proceedings to be brought in respect of non-recoverable property unless the enforcement authority considered it proportionate to do so. I think that I may have said that before, too. In light of this explanation—[Interruption.]

Hon. Members: Saved by the bell.
 Sitting suspended for a Division in the House. 
 On resuming—

George Foulkes: Where was I?

Nick Hawkins: Lost.

George Foulkes: I think that I was about to say that when the recoverable property and the part or portion are owned by the same person, clause 250(1)(b) will not apply, because it assumes that there is more than one interest in the property, thereby implying that there is more than one holder of the interest. Clause 250(1)(e) is therefore essential to cover the case in which recoverable property and the part or portion are held by the same person.
 The hon. Member for Beaconsfield asked about pension rights, which—to revert to my serious mode—I must emphasise is an important matter. The Bill provides that rights in a pension scheme may be recoverable. I am sure that he will understand that that is necessary in order to ensure that pension funds are not used as a safe haven. However, as I was thinking during the break in our proceedings, the question 
 arises of how to identify the value of pension rights. [Interruption.] This is my serious mode. Hon. Members are not supposed to laugh now. I am assured that it is always possible to identify the value of a right in a pension scheme. Cash equivalent values are used for that purpose. If you—or, rather, if hon. Members—contact the Fees Office, they can find out the value of their pension rights, as indeed can you, Mr. O'Brien, which I am sure in your case are lucrative.

Nick Hawkins: The Minister mentions pension rights. Has he taken any note of the danger that the Secretary of State for Transport, Local Government and the Regions might fall under the purview of the provision because of the loss of pension rights through the reduction to nil of the value of Railtrack shares, which affects all parliamentarians' pensions, and many other people's pensions, too?

Bill O'Brien: Order. Pension rights will be discussed under clause 273. I hope that the Minister will stick to the amendment.

George Foulkes: I certainly shall. I shall not go down that dangerous track, Mr. O'Brien.
 The issues that may arise with other sorts of property will therefore not arise. Subsection (3) makes it clear that other, innocent pension scheme members cannot be affected. I hope that in the light of that clear and comprehensive explanation, the hon. Gentleman will withdraw his amendment.

Nick Hawkins: I shall be mercifully brief. Not even the Prime Minister's spokesman could have accurately spun what the Minister said—both before and after the Division—as clear. Comprehensive it may have been, especially as on several occasions he stopped himself and said, ''I think I've read that bit out already.'' He may not have realised that the first part of his speech was word for word what is already in the explanatory notes, which I had already quoted, so no doubt Hansard will have that passage about four times in its report of this short debate.
 When we decided to probe, little did my hon. Friend the Member for Beaconsfield and I know how much of a morass the Government would find themselves in. I do not blame the Minister personally for that, but I believe that he now recognises the accuracy of my comment when I moved the amendment that the drafting was worthy of Sir Humphrey in ''Yes, Minister''. Reading out the brief, the Minister was certainly as confused as Jim Hacker ever was. 
 Mr. Ainsworth: Does the hon. Gentleman not realise that it was not his probing amendment that caused the difficulty but the brief intervention by the hon. Member for Beaconsfield?

Nick Hawkins: I am not at all surprised that my hon. Friend's incisive forensic skills should have led the
 Minister into difficulties, because his skills regularly cause difficulties for the Government.
 I say to both the Minister and the Under-Secretary that we shall not press the amendment to a Division. It is a probing amendment, but after their difficulties in responding to it, they and their officials should reconsider this part of the Bill and introduce the necessary clarity. The provisions are far from clear at the moment. Because of their over-complexity and lack of clarity, we may return to them on Report. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 250 ordered to stand part of the Bill.

Clause 251 - Application for interim receiving order

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: This seems a well-drafted clause. I should like an assurance from the Minister that it is what I think it is, and that it follows the usual civil tests for the granting of injunctions. If he can confirm that it is the basis for the application for the interim receiving order, I shall be content. I have a slight anxiety, however, because the clause seems so clear and well-drafted that I may have missed something.

Nick Hawkins: I agree. That is how the clause appeared to me, too. My question arises not only from the way in which it is drafted, but from the explanatory note. When I practised in the courts, I dealt with many of the Mareva injunctions to which the explanatory note refers. It says that they are still called Mareva injunctions in Northern Ireland, but not on the mainland. I am puzzled by that, because the arrangements that freeze people's assets have always been known as Mareva injunctions on the mainland. The change has happened since I practised in the courts, so perhaps the Minister could shed some light on why the injunctions have been renamed, and why that has not yet happened in Northern Ireland?

Bob Ainsworth: I can satisfy the hon. Member for Beaconsfield, because the clause provides that an application may be made before, or after, the start of the proceedings for a recovery order. That means that although the civil recovery cases—like all civil recovery cases—will start with the issue of a claim form as provided under the civil procedure rules, there may first be an application for an interim receiving order. The hon. Gentleman is absolutely right. The procedure falls within the normal procedures, and I can give him the clear assurance that he seeks.
 The procedures have been renamed under the civil procedure rules. They are now called freezing orders in England and Wales, but the change did not apply to Northern Ireland, where they will continue to be called Mareva orders.
 Question put and agreed to. 
 Clause 251 ordered to stand part of the Bill.

Clause 252 - Functions of interim receiver

Dominic Grieve: I beg to move amendment No. 349, in page 148, line 7, leave out subsection (3).

Bill O'Brien: With this it will be convenient to take amendment No. 385, in clause 260, page 151, line 27, leave out subsection (3).

Dominic Grieve: This clause brings us to the functions of the interim receiver, and in particular, to such liability as he may attract for actions that he may carry out. It is noteworthy that subsection (3) states that if the interim receiver
''deals with any property which is not property to which the order applies, and . . . at the time he deals with the property he believes on reasonable grounds that he is entitled to do so in pursuance of the order'', 
he will not be personally liable 
 ''in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.'' 
That must be read in conjunction with clause 282 on compensation. It provides that someone may apply to the court for compensation if they have suffered loss as a result of the making of an interim order. 
 This is a probing amendment. I do not take great exception to subsection (3). It might be appropriate to provide protection for a receiver, but with regard to clauses 252 and 282, I need reassurance about the link-up and operation of the compensation mechanism. 
 If an interim receiver has been negligent, will the provisions of clause 282 not apply? To get compensation, instead of going to the court, will the interim receiver have to be sued? I have that in mind because when we discussed confiscation provisions, that appeared to be the case. I also need reassurance that when an interim receiver has made a mistake, anyone who has been affected will be able to claim compensation under clause 282. I think that that is the case, but I am not sure. 
 The two clauses are clearly linked, and it is important that there should be a compensation procedure. If someone is refused compensation under clause 282, can they still sue the receiver, if they think that he has been negligent, or is the one process mutually exclusive of the other? 
 Those are the key issues. I am unsure about them, and I do not find the clauses, particularly clause 282, easy to read. I seek clarification from the Minister, so that we can have a debate, if that is necessary.

Paul Stinchcombe: I have one short question. Negligence is referred to in subsection (3), but there is no reference to any other kinds of misfeasance, such as dishonesty. What would happen if an interim receiver dealt with property that would otherwise fall within the category, but he did so dishonestly, and thereby caused loss?

Bob Ainsworth: Clause 251 provides for an interim receiving order for the detention, custody and preservation of property, and for the appointment of an interim receiver.
 Clause 252 sets out the functions of the receiver. Subsection(3) provides legal protection for the interim receiver if he mistakenly, but without being negligent, deals with property that is not the property specified in the order, and causes loss or damage to that property. The term ''dealing with property'' includes disposing of it, taking possession of it, or removing it from the United Kingdom. Amendment No. 349 would remove the protection that is currently afforded to an interim receiver, and amendment No. 385 would do that in Scotland. 
 With regard to amendment No. 349, clause 251 provides that a director may apply for an interim receiving order to prevent property that is suspected of being recoverable property from being dissipated. 
 The court-appointed interim receiver has two functions: to look after and manage the disputed property pending a full court hearing, and to take an active role in ascertaining what is recoverable property. 
 The role of the interim receiver will be the key to the operation of civil recovery in most cases. When the interim receiver is appointed, he will endeavour to preserve the property. However, it is possible that in the course of discharging his duties, loss or damage may occur to property that is not the subject of the interim receiving order, as the interim receiver might mistakenly, but without being negligent, deal with such property. Clause 252(3) currently provides legal protection for the interim receiver if he causes damage in those circumstances. That protection is commonly provided to receivers and does not therefore represent a radical departure from existing practice. 
 Obvious models for the clause are found in the Insolvency Act 1986. In section 284(4) of that Act, the official receiver is provided with similar protection if he causes loss or damage in seizing or disposing of property that he has reasonable grounds for believing is part of the estate. The same provision is made in section 304(4) of the 1986 Act for the trustee of a bankrupt's estate. Such provisions also apply to receivers appointed in criminal confiscation cases under the Criminal Justice Act 1988 and the Drug Trafficking Act 1994. That provision is replicated in the Bill in clause 61, in part 2, for criminal confiscation cases. 
 If the protection provided in subsection (3) were removed as the amendment proposes, potential receivers might be deterred from taking on receivership in civil recovery cases. That would have a considerable impact on the director's ability to bring successful cases. 
 Under the clause, people who own an interest in property that suffers loss or damage when an interim receiver deals mistakenly with it will be able to bring civil action for damages against the interim receiver. Such action may well succeed if the receiver cannot satisfy the court that he had reasonable grounds for believing that the property was covered by the interim receiving order, and even if he shows that, he will still be liable for damages if he acted negligently. That seems a fair measure of protection for those adversely affected, and as I pointed out, the provisions are based 
 on precedents. If we went any further, we would risk paralysing receivers or deterring them from taking on cases. 
 Clause 282 deals with compensation for people whose property is subject to an interim receiving order. Clause 252 is about property that has nothing to do with the proceedings but is interfered with accidentally. There is therefore no link between the provisions in the two clauses. If the owner of the property referred to in clause 252(3) wants compensation he will have to bring proceedings against the receiver. 
 I can tell my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) that in principle receivers are liable for loss caused by deceit or wilful neglect, and under the clause, negligence is added to those categories. As the hon. Member for Beaconsfield says, there are two separate provisions in the Bill for dealing with such issues, one in clause 282 and one in clause 252. The two are not interchangeable.

Dominic Grieve: That leaves me slightly troubled, unless I have misunderstood what the Minister said. Let us suppose that a receiver deals with a property, accidentally and without being negligent, and that he believes—on reasonable grounds—that he is entitled to do that in pursuance of the order, and it then transpires that he should not have touched that particular property and it does not fall within the scope of the order. Under clause 282, the person concerned does not have a right of redress. In that case, where—if anywhere—does the right of redress lie for any damage that that individual may have suffered as a result of the receiver's actions? It is strange that no one is liable to pay compensation to an individual in those circumstances. There is a state-sponsored scheme under which an individual—who is apparently wholly unconnected with the proceedings—suffers damage, and unless that damage is due to negligence, he cannot recover it. That cannot be right.
Mr. Ainsworth rose—

Nick Hawkins: On a point of order, Mr. O'Brien. I see on the Annunciator that the Minister who is winding up the debate in the Chamber has started to speak, so I expect that there will soon be a Division in the House. The next time there is a Division while we are in Committee, can we return to the normal convention of having a 15-minute break?

Bill O'Brien: I will give that request serious consideration.

Bob Ainsworth: The position does not satisfy the hon. Member for Beaconsfield to the degree that he thought it would. In respect of properties that are involved in the case itself, obviously there are compensation procedures. They are provided for under clause 282 and are widely drawn. They give the court the discretion to allow compensation for any loss caused. The case to which the hon. Gentleman refers is
 when neither the property nor the property owner should have been drawn in, but were drawn in by accident, through the activities of an interim receiver who behaved negligently. Under those circumstances, the case must be against the receiver himself, not for the sort of compensation provided under clause 282. That may appear a little harsh, but I am not sure that it is different from what happens to many people in similar circumstances.

Dominic Grieve: It does appear very harsh. I can easily imagine circumstances in which a receiver could make a reasonable mistake. As a result, an individual's property, wholly outside the scope of the order—it is not associated nor recoverable property—is adversely affected. If I understand the Minister correctly, the receiver is immune from any proceedings against him, and there is nowhere else for the individual to look for compensation. I find that extraordinary. With such an extension of administrative power, I would have expected such a person to be covered by the compensation mechanism under clause 282. I invite the Minister to consider very carefully whether that should be included.

Bob Ainsworth: The hon. Gentleman has made a point that we need to go away and consider. He is talking not about a case in which the interim receiver is negligent and therefore liable to be pursued for that negligence, but about a case in which there is interference. The protection kicks in because there is no case for negligence, so there is no case against the receiver. The individual has been adversely affected yet he has nowhere to go. Let me reflect on the point that the hon. Gentleman has exposed, and I shall come back to him.

Dominic Grieve: I am grateful to the Minister. He is right. When I opened the discussion, I said I wanted to understand the interrelationship between clauses 252 and 282. There were a number of possible grey areas. The hon. Gentleman has resolved nearly all of them, but at the end we were left with a serious omission. I find it most peculiar that in an issue of public policy—and this example involves the most innocent category of person—there is apparently no mechanism for redress.
 I suppose that it would be possible to bring a claim against the director, but why subject individuals in these circumstances to that burden when it should be easy to include them within the provisions of clause 282 as an interested party who could come along and ask the court for compensation?

Bob Ainsworth: I would have thought that we would not reach clause 282 today. The opportunity to reflect on the point that the hon. Gentleman made should arise before we discuss compensation issues.

Dominic Grieve: The Minister is right. Another amendment is gently formulating in my mind.
 On the basis of the Minister's helpful remarks, his response to my point and the identification of a flaw in the legislation that could cause injustice and to which we will return, probably on Tuesday, I beg to ask leave to withdraw the amendment. 
Amendment, by leave, withdrawn.
 Clause 252 ordered to stand part of the Bill.Schedule 3Powers of interim receiver or administrator

Schedule 3 - Powers of interim receiver or administrator

Dominic Grieve: I beg to move amendment No. 358, in page 262, line 18, leave out subparagraph (2).
 Schedule 3 defines the powers of the interim receiver or administrator. A number of points arise from that. Since I tabled the amendment, it is interesting that the Minister has tabled several amendments to schedule 3. That will have an impact on some of the amendments that I tabled, because some of the Government amendments go a long way toward meeting my anxieties. We can examine that as we continue. 
 The amendment would delete paragraph 2(2). Paragraph 1 provides that the administrator has the power to seize property to which the order applies. Paragraph 2 says: 
 ''(1) Power to obtain information or to require a person to answer any question. 
 (2) A requirement imposed in the exercise of the power has effect in spite of any restriction on the disclosure of information (however imposed).'' 
That strikes me as rather a wide power. Rather than making a speech about that, I want the Minister to explain and justify its presence. The amendment is probing, and if he can reassure me about the sub-paragraph, I will be content for it to remain in the Bill. It rang alarm bells in my mind, and I want him to explain it.

Bob Ainsworth: When an interim receiving order is made under clause 251, the court must appoint an interim receiver who will have both a management and an investigative function. Clause 252 introduces schedule 3, which lists some of the more significant powers that a court may choose to confer on the interim receiver in order for him to perform his function.
 Paragraph 2(1) of schedule 3 provides that the court may authorise the interim receiver to obtain information or to require a person to answer any question. Paragraph 2(2) provides that a requirement imposed on a person as a result of the exercise of that power is to have effect in spite of any restriction on the disclosure of information, however that is imposed.

Dominic Grieve: I shall help the Minister on his way. I was, perhaps, elliptical in opening the debate. Where does legal professional privilege stand in respect of the clause? That is an example, but it is not the only one.

Bob Ainsworth: There may be a particular example. Let us come to that.
 The most obvious restriction in this situation would be a breach of confidentiality. If information is held in confidence by, for example, a bank, a person could sue for damages for breach of confidentiality if the bank disclosed the information, subject to the defences that apply. Paragraph 2(2) overrides that. The amendment would remove paragraph 2(2) from schedule 3, which would prevent the receiver from receiving any information relevant to the restriction applying. 
 As I said, the role of an interim receiver will be key to the operation of civil recovery. One of his main functions will be to investigate the origins of the property and any other property that may have been generated by the same unlawful conduct. To carry that out effectively, he may require powers to obtain information as set out in schedule 3. Currently, the court may therefore authorise the interim receiver to require persons to answer questions irrespective of restrictions on the disclosure of information that would otherwise apply. That power might be used, for example, to direct a respondent to provide information about property that is or may be the subject of the order. 
 I can confirm that the wording does not affect the position of legal professional privilege. I am assured that the duty to disclose that may be imposed under the Bill is subject to protection in the public interest of legal professional privilege. That protection applies automatically to all High Court proceedings and does not therefore need to be included in the Bill. If other restrictions on disclosure were to apply to the power that the court may give to the interim receiver, his abilities would be unduly fettered. We do not therefore accept that the restriction should apply as a matter of course. 
 Section 35(1) of the Data Protection Act 1998 provides an exemption whereby a disclosure is required by order of a court. I understand that that exemption would cover the situation in which disclosure is required by a receiver acting under a court order. If, however, the interim receiver seeks to exercise his power in a way that causes any person concern, that person may apply to the court and ask it to give directions to the receiver on the exercise of his functions. Legal advice is protected, and the individual can go back to the court to challenge the disclosures of information that are being imposed. Other than that, there is no need to fetter the requirement to disclose information to an interim receiver. I hope that the hon. Member for Beaconsfield will accept that.

Dominic Grieve: I listened carefully to the Minister, and I am mindful that I may have this wrong and his reassurance may be sufficient. The schedule gives what appears to be a wholly unfettered power to the receiver or administrator to demand information of any person. I am mindful of the drafting practice outlined by the Minister, whereby it is not necessary to indicate the ordinary fetters that would apply in civil litigation and High Court practice, and he may be right.
 However, I am not wholly reassured. If he talks to his officials, and writes me a letter detailing exactly why that is the case, he may persuade me, but I am worried.
 When one reads the provision, it does not look nice—schedule 3 gives the impression of providing an unfettered power. Therefore, I shall reluctantly press the amendment to a vote, just to register my concern about a schedule in a statute giving a power of that kind to anybody. It bothers me. If the Minister can persuade me otherwise, or if he wants to respond now, let him do so. At the moment, however, that provision appears contrary to the sort of principles that I would have expected.

Bob Ainsworth: Is the hon. Gentleman's concern the wider issue of disclosure of information, or is it about the assurances that I am giving in relation to legal privilege?

Dominic Grieve: It is the wider issue. The Minister has assured me that legal professional privilege would not be affected. I am sure that that is what his advisers have told him, and I accept it, albeit with the caveat that—although this may be due to ignorance, because I have not been a great student of statutes—I have not seen a provision as starkly worded as paragraph 2(2).
 The Minister's assurance surprises me, given that the stark wording of the schedule appears to give a completely unfettered power; the words ''however imposed'' are extraordinary. If those words were removed I would be happier, but their inclusion suggests that whatever the source of the imposition of the restriction, it is null and void. Otherwise, why are those words included? 
 I also worry about the wider issues. There are several areas other than legal professional privilege that might provide compelling arguments. However, I am mindful of what the Minister says about the power of application to the court. As I said previously, words matter, despite what people intend. The wording of the Bill will be the subject matter of interpretation; it is not likely that people will run and look at Hansard to see what was said in Committee—although they might. It seems to me that the schedule provides a completely unfettered power, which would appear to override everything else, however imposed. That power should be more strictly defined.

Bob Ainsworth: There are three effective fetters. One is linked with legal privilege. Another is associated with the ability to go back to the court to prevent the information from being disclosed if someone thinks that such a case can be made. The third is contained in subparagraph (3), which is about how and where the information can be used. It cannot be used to incriminate an individual. The hon. Gentleman may find the wording offensive, but he has not yet provided information that exposes the area of his concern, which would allow me to see whether there is an issue that we should address.

Nick Hawkins: I share the concern of my hon. Friend the Member for Beaconsfield that the wording is stark. It is not for us to give an example to the Minister. He is trying to persuade us to withdraw our amendment, and he has not persuaded us that the wording is not stark.
 I shall offer one thought to the Minister. He says that one of the safeguards is that people can go back to the court. When someone goes back to the court, the court will be directed to look at the wording of schedule 3, which, if it remains in its current form, will say that the receiver can get any kind of information, regardless of any restriction, however imposed. I appreciate that that sounds a little circular, but that is why we are concerned that the wording is so stark.

Bob Ainsworth: I thought that the hon. Gentleman was trying to become reasonable, and seeking to emulate his hon. Friend—but now he says, ''It's got nothing to do with me. I've got no obligation to show where there is a necessity. It's entirely up to the Minister.'' Other than legal privilege, the ability to go back to the court, and the fetters on inappropriate use of information so gained, I have yet to hear of a category of information—

Paul Stinchcombe: The clause is phrased in an absolute sense. There is no doubt about that whatever. The Minister has already mentioned one category of case—involving legal privilege—that he says would not bite on it, despite the absolute wording of the clause. Is he aware of any other categories under which the absolute phraseology would not bite?

Bob Ainsworth: In the spirit that we have tried to engender, at least since we moved on to consider part 5, I suggest that rather than entering into an unreasonable dispute, I should consider the matter and clarify how the provision will operate in Northern Ireland. As soon as I can, I shall expand in writing on what information will be gained and how it will be obtained. I do not know whether that satisfies the hon. Member for Surrey Heath. I see that the hon. Member for Beaconsfield is shaking his head. He is determined on confrontation on the issue, even though I have offered him an explanation, so there is no hope for us. Clearly, we will have to wait until next week for the Christmas season to kick in.

Dominic Grieve: The Minister should not assume that a decision to press an amendment to a Division is always intended to be confrontational—it is a way of highlighting concern and no more. If I were a draftsman, I would not draft such a measure in such a way, but I accept that I am not a draftsman. I shall press the amendment to a Division.
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 11.

Question accordingly negatived. 
 Further consideration adjourned.—[Mrs. McGuire.] 
 Adjourned accordingly at twenty-two minutes to Five o'clock till Tuesday 18 December at half-past Ten o'clock.